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Patent Office Asked to Review and Revoke Blackboard Patent

The Software Freedom Law Center (SFLC), provider of pro-bono legal services to protect and advance Free and Open Source Software, has filed a formal request with the United States Patent and Trademark Office (USPTO) for re-examination of Blackboard’s e-Learning patent. If successful, the request will ultimately lead to the cancellation of all 44 claims of the patent.

Blackboard, Inc., maker of web-based software that allows teachers and students to interact outside of the classroom, was awarded the patent on January 17, 2006. The patent, “Internet-based education support system and methods” (U.S. 6988138), grants Blackboard a monopoly on most educational software that differentiates between the roles of teacher and student until the year 2022.

The Software Freedom Law Center filed the re-examination request on behalf of Sakai, Moodle and ATutor, three open source educational software programs. The request cites documents that predate the filing of the Blackboard patent and describe everything claimed in it. For a patent to be valid, it must contain ideas that were original when it was filed.

“In a free society, there is no room for a monopoly on any part of the educational process,” said Eben Moglen, Executive Director of SFLC and Professor of Law and Legal History at Columbia University. “We are confident that there is enough prior art for the Patent Office to open, re-examine, and ultimately revoke all of the patent’s claims.”

The Software Freedom Law Center filed the request for re-examination on November 17. The Patent Office will decide whether to order re-examination of the patent within three months.

About the Blackboard Patent

In July, Blackboard filed a lawsuit against Desire2Learn, a competing educational software maker, alleging infringement of its e-Learning patent. Although Desire2Learn’s software is not open source, the open source and educational software communities responded with immediate concern to the possibility of an additional lawsuit that targets them.

“The educational software community has for decades thrived on the open discussion and transmission of ideas,” said Joseph Hardin, Sakai Foundation Board Chairman. “We are deeply concerned that Blackboard’s broad patent will stifle innovation in our community.”

“Blackboard’s patent is patently unjust, as it covers ideas that were widely known and implemented before it was granted,” said Martin Dougiamas, founder of Moodle. “It’s part of a disturbing trend of patents that seek to lock up obvious cultural ideas as the property of individuals.”

After Blackboard filed the lawsuit against Desire2Learn, volunteers across the Internet found examples of older programs that used ideas claimed by the patent. These volunteers collaborated to make a Wikipedia article on the “History of virtual learning environments,” which documents several examples of prior art.

“A patent on an educational concept – namely the relationship among students, instructors, and administrators – makes no sense,” said Greg Gay, project lead of ATutor. “Such ideas are public and have been practiced for centuries; they are not the result of research and development.”